Full Judgment Text
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PETITIONER:
BALWINDER SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT09/11/1995
BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
SEN, S.C. (J)
CITATION:
1996 AIR 607 1995 SCC Supl. (4) 259
JT 1995 (8) 81 1995 SCALE (6)261
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
DR. ANAND. J.
The appellant on conviction by the learned Judge,
Special Court, Patiala for offences under Section 302/201
IPC was sentenced to suffer imprisonment for life and to pay
a fine of Rs. 2,000/- and in default to suffer further RI
for two years for the offence under Section 302 IPC and 2
years RI for the offence under Section 201 IPC. Both the
sentences were, however, directed to run concurrently.
Through this appeal under Section 14 of the Terrorist
Affected Areas (Special Courts) Act, 1984, he has questioned
his conviction and sentence.
The prosecution case in brief is that the appellant and
Smt. Tajinder Kaur, PW-2 were married about 10 years prior
to the date of occurrence which allegedly took place on
18.3.1984. Two daughters pinky and Rozy aged about 6-1/2 or
7 years and 2-1/2 years respectively were born out of this
wedlock. Ajmer Kaur, mother of the appellant as well as the
appellant were unhappy with Tejinder Kaur, PW-2 for giving
birth to daughters only and both she and the appellant used
to quarrel with Tejinder Kaur on that account, who was also
given beating by the appellant on certain occasions. On
17.3.1984 there was one such quarrel. The appellant and his
mother Ajmer Kaur conspired to put an end to the life of the
two daughters and in pursuance thereof on March 18, 1984,
the appellant took away both the daughters stating to PW-2
that he would return only after killing them. He reached
bus-stand Patiala where he met Balwant Kaur, PW-4 and on her
enquiry about the welfare of the children told her that he
was taking away his daughters to kill them. Balwant Kaur PW-
4 on hearing this went to the house of the appellant and
informed Tejinder Kaur PW-2 about it. The appellant took the
children to Ludhiana to the house of his sister Mohinder
Kaur, DW-1 and after staying there for a few hours left the
house saying that he was going to Rara Saheb. On 19.3.1984,
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Dr. Jaswant Singh PW-6 found the dead body of a female child
in the canal at about 12 or 12.30 p.m. when he went there to
ease himself. The dead body was taken out but no one who
reached there from the adjoining villages could identify it.
At about 4.30 or 5.00 p.m., the appellant also reached there
and identified the dead body as of his own child. He took
the dead body of Rozy and cremated her near Gurdwara Rara
Saheb. The other daughter Pinky, however, was not found
either dead or alive. Satya Walia PW-3, a social worker and
a neighbour of the appellant and Tejinder Kaur PW-2 on
coming to know about the murders from the neighbours and
from an extra-judicial confession made by the appellant to
her that he had murdered the girls and cremated the dead
body of Rozy made a written complaint, Ex. PB, to the police
on 23.3.1984 and on its basis the first information report
was registered. The investigation of the case was taken in
hand by ASI Iqbal Singh PW-9 who visited the village as well
as the site of cremation. During the investigation the
police took into possession some bones and steel bangles
from the place where the deadbody of Rozy was cremated on
the basis of a disclosure statement made by the appellant.
After completion of the ivestigation, challan was filed
against both the appellant and his mother Smt. Ajmer Kaur.
Both of them were charged for an offence under Section 120-B
IPC, for conspiring to commit the murder of Rozy and Pinky.
As already noticed the appellant was also charged with the
offences under Section 302/201 IPC for commiting the murder
of Rozy and cremating her dead body to screen himself. He
was also charged for an offence under Section 302 IPC for
the murder of Pinky. The Trial Court after recording the
evidence found that the charge of conspiracy under Section
120-B IPC was not established and consequently both the
appellant and Ajmer Kaur were acquitted of the said charge.
The Trial Court also found that the charge against the
appellant for an offence under Section 302 IPC for
committing the murder of Pinky had also not been established
and therefore acquitted the appellant of the said charge
while convicting and sentencing him for the offences under
Section 302/201 IPC for the murder of Rozy. The appellant,
in his statement under Section 303 Cr.P.C. had denied the
prosecution allegations and stated that his wife was under
the influence of Satya Walia PW-3 who was leading her estray
and since the parents of his wife, Tejinder Kaur, PW-2 were
greedy she used to earn money and handover the same to her
parents. He had admonished his wife for going estray and
keeping company with Satya Walia PW3 on a number of
occasions. PW-2 had gone to her parents house at Sunam
leaving the children behind. While he had gone to the
market, the children left the house on their own and when he
and his mother Ajmer Kaur after search did not find them,
they sent a telegram to Tejinder Kaur PW2 and Sham Singh, on
March 22, 1984. That with the connivance of Satya Walia, PW-
3 he was falsely implicated in the case.
There is no direct evidence in this case in sofar as
the murder of Rozy is concerned. The prosecution relied upon
the following circumstances to connect the appellant with
the crime in the Trial Court :
(i) The evidence of "last seen together" based on the
evidence of PW-2, Tejinder Kaur, Balwant Kaur, PW-4 and of
Mohinder Singh, PW-5 ; (ii) Extra-judicial confession made
by the appellant to PW-3 Satya Walia. (iii) the recovery of
dead body of Rozy from the canal and its claim by the
appellant and (iv) disclosure statement made by the
appellant leading to the recovery of bones of a child from
the place where the appellant had cremated the dead body of
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Rozy.
In a case based on circumstancial evidence, it is now
well settled that the circumstances from which the
conclusion of guilt is to be drawn should be fully proved
and those circumstances must be conclusive in nature to
connect the accused with the crime. All the links in the
chain of events must be established beyond a reasonable
doubt and the established circumstances should be consistent
only with the hypothesis of the guilt of the accused and
totally inconsistent with his innocence. In a case based on
circumstancial evidence the Court has to be on its guard to
avoid the danger of allowing suspicion to take the place of
legal proof and has to be watchful to avoid the danger of
being swayed by emotional considerations,, howsoever strong
they may be, to take the place of proof. It is in the
context of the above settled principles, that we shall
analyse the evidence led by the prosecution.
(i) Last seen together
PW-2 Tejinder Kaur, wife of the appellant deposed about
the quarrels between her on the one side and the appellant
and his mother on the other side on account of the birth of
the daughters only and went on to state that on March 18,
1984 the appellant and his mother conspired to do away with
her two daughters, Rozy and Pinky, because they considered
the birth of the females to be a curse. She deposed that the
appellant took away both the daughters at about 12.30 p.m.
or 1.00 p.m. on that day stating that he would return only
after killing them. Soon thereafter, Balwant Kaur PW-4, went
to the house of PW-2 at about 2.00 p.m. and told her that
the appellant had met her at the bus stand and disclosed to
her, on her enquiry about the well being of the children,
that he was going to kill the daughters. On 19th March, 1984
her mother-in-law, Ajmer Kaur informed her at about 6.30
a.m. that her daughters had been killed by the appellant and
thrown in the canal. On getting this information PW-2
proceeded towards her parents house at Sunam but she was
brought back by her mother-in-law Ajmer Kaur from near the
Modi College on a rickshaw. Both of them then went out in
"search" of the children. The appellant returned to the
house on 20th March, 1984 and on her enquiry from him about
the children, he disclosed to her that he had killed both
the daughters and had cremated Rozy behind the Gurdwara Rara
Saheb and that the dead body of Pinky had not been found. On
hearing this news, she started crying. Satya Walia, PW-3 on
hearing about the murders came to her house and asked the
appellant about the children who disclosed to her that he
had killed them. During her cross-examination PW-2 admitted
that she had never earlier complained about the quarrels or
the beatings given to her by the appellant and his mother to
anyone except to Satya Walia PW-3 but conceded that she did
not disclose to Satya Walia PW-3 either that the cause of
quarrels was on account of the birth of daughters. In her
statement recorded under Section 161 Cr.P.C. also the cause
of quarrel had not been stated by her and she was duly
confronted with it. PW-2 also admitted that neither on 18th
March, 1984 nor on 19th March, 1984 did she inform anyone
about the incident and even though Satya Walia had met her
on 19th March she did not tell her about it and that it was
only on 20th March, 1984 that she had disclosed to Satya
Walia PW-3 for the first time as to what had transpired on
18th March, 1984 and the information she had recived from
her mother-in-law on the morning of 19.3.1984. She did not
report the matter to the police nor even informed her
parents about the murder of the children till 23.3.1984. Her
statement was recorded by the police only on 24th March,
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1984. She admitted that she had visited Gurdwara Rara Saheb
alongwith her mother-in-law on 20.3.1984 and had found ashes
and bones there.
The prosecution sought corroboration of the evidence
relating to the taking away of the two daughters by the
appellant as deposed to by Tejinder Kaur PW-2 from the
statements of Balwant Kaur, PW-4 and Mohinder Singh PW-5.
The Trial Court did not place any reliance upon the
statement of Balwant Kaur PW-4 and in our opinion rightly.
Her statement does not inspire any confidence. Though PW-2
in her statement deposed that PW-4 was her mother’s sister
and had come to her straight from the bus stand on hearing
from the appellant that he was going to kill the daughters,
PW-4 Balwant Kaur in her cross-examination stated "Tejinder
Kaur is not related to me as such. My purpose of visit was
to see Tejinder Kaur as directed by her mother." The
prosecution, however, did not examine the mother of Tejinder
Kaur to elicit "what direction" she had given to PW-4 and
why. This material contradiction between her testimony and
the statement of PW-2 Tejinder Kaur besides the
improbability of the appellant making any statement to her
renders her evidence untrustworthy.
So far as the evidence of PW-5 Mohinder Singh, the
father-in-law of the sister of the appellant is concerned,
the Trial Court found it to afford corroboration to the
statement of PW-2. According to him, the appellant had
visited his house on 18.3.84 at about 4.00 or 4.30 p.m.
alongwith his daughters Pinky and Rozy and after taking tea
had left the house informing him that he was going to visit
Rara Saheb. During his cross-examination, PW-5 denied the
suggestion that after marriage, his son Amrik Singh was
risiding separately from him and that he was not having good
relations with his daughter-in-law, sister of the appellant.
This is the entire evidence relied upon by the
prosecution in support of the first circumstance.
There was a delay of 5 days in lodging the first
information report Ex. PB. On her own admission, PW-2
Tejinder Kaur was told by the appellant while taking away
the girls on 18.3.1984 at about noon time that he was going
to kill them. She, however, kept quiet. She did not protest
let alone raise any hue and cry so as to prevent the
appellant from taking away the daughters for killing them.
She did not even disclose to anyone as to what the appellant
had told her even though the appellant did not return home
at night. On 19th March she learnt at about 6.30 a.m. from
her mother-in-law Ajmer Kaur, a co-conspirator with her
husband, that the appellant had killed the two daughters and
thrown them in the canal. She still kept quiet and not only
did she not raise any hue or cry she did not inform anyone
including her parents and Satya Walia. PW3, who had
admittedly met her on that day about the
incident. This conduct is rather unnatural for a mother,
keeping in view the earlier quarrels and the declarations
made by the appellant of his intention to kill the daughters
on 18.3.1984 itself. PW-2 also admitted in her
crossexamination that she alongwith her mother-in-law Ajmer
Kaur had gone out in search of the children to various
places including Ragho Majra, where the maternal uncles of
the appellant were residing. Why would Ajmer Kaur go with
her, to search for the children, when she already knew that
the appellant had killed them and thrown the dead bodies in
the canal is not at all understandable? From the statement
of PW-3 as contained in the FIR it emerges that when she
came out of the house of the appellant, she had met PW-2 and
Ajmer Kaur coming in a rickshaw and that both of them were
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weeping at that time. This conduct of Ajmer Kaur does not
fit in with the prosecution case. PW2 also admitted that she
alongwith her mother-in-law had visited Gurdwara Rara Saheb
on 20th March, 1984 itself and had seen the mortal remains
of her child and that the appellant had also told her on
returning home on 20.3.1984 that he had killed the girls,
but still she did not lodge any complaint with the police or
inform anyone about it. PW2 could give no explanation for
her silence. The evidence of PW-5, Mohinder Singh, the
father-in-law of the sister of the appellant does not
inspire confidence. DW-1, Mohinder Kaur, wife of Amrik
Singh, daughter-in-law of PW-5 asserted in her statement
that the appellant had never visited her house in March 1984
alongwith his children and that when she came to know on
March 23, 1984 that the children of her brother were missing
from their house, she had visited his house. She stated that
her father-in-law was residing separately from her and that
she and her husband had separated from him within six
months of their marriage. She and her husband were not even
on visiting terms with her father-in-law. These assertions
of DW1 have remained unchallenged. These was, thus, no
occasion for the appellant to go to the house of the father-
in-law of her sister, with whom admittedly his sister was
having strained relations and not visiting his sister at all
on that day. In the face of the statement of DW-1, the
correctness of the statement of PW-5 becomes doubtful. PW-5
appears to have come forward to depose against the
appellant, who is the only brother of his daughter of his
daughter-in-law DW-1 Mohinder Kaur, posslbly because of his
strained relations with her. It appears to us that the delay
in lodging the first information report was utilised by the
complainant party in giving twist to the facts and
introducing interested witnesses like PW-4 and PW-5 in the
case. We are not impressed by their statements and find that
the same can afford no corroboration to the otherwise
untrustworthy testimony of Tejinder Kaur, PW-2. The Trial
Court erred in relying upon the statements of PW-2 and PW-5,
ignoring the basic infirmities in their evidence and
overlooking the delay in the lodging of the FIR. The
prosecution had failed to establish that the appellant had
taken away his two daughters on 18th March, 1984 in the
manner alleged by it. In our opinion the evidence led by the
prosecution to establish the circumstance of "last seen
together" has not been established beyond a reasonable
doubt.
(ii) Extra-judicial confession:
An extra-judicial confession by its very nature is
rather a weak type of evidence and requires appreciation
with great deal of care and caution. Where an extrajudicial
confession is surrounded by suspicious circumstances its
credibility becomes doubtful and it loses its importance.
The courts generally look for independent reliable
corroboration before placing any reliance upon an extra
judicial confession.
The Trial Court relied upon the extra-judicial
confession allegedly made by the appellant to PW-3 Satya
Walia to the effect that he had killed his daughters and had
cremated the dead body of Rozy, to connect the appellant
with the crime. It found corroboration of the statement of
PW-3 from the evidence relating to the recovery of the dead
body from the canal and the disclosure statement allegedly
made by the appellant leading to the recovery of the bones
from the place behind Gurdwara Rara Saheb, besides the
statement of PW2.
PW-3 claims to be the Pardhan of Mohalla Preet Nagar
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and states that she is a social worker. According to her
deposition, the appellant had made an extra judicial
confession to her when she visited his house on 20.3.84 on
learning from the neighbours that the appellant had killed
his two daughters. PW-3, however, lodged the complaint with
the police only on 23rd March, 1984 when not only had she
learnt from the neighbours about the murder of the two girls
by the appellant but the appellant had himself made an extra
judicial confession to her on 20.3.84 itself. PW3 admitted
in her cross-examination that she was with the police in
connection with the case of Darshana from 21st March to 23rd
March, 1984 but could offer no explanation as to why she did
not lodge the complaint with the police till 23.3.84. This
delay also probabalises the defence version that after
22.3.84, When PW2 and Sham Singh and others arrived from
Sunam on getting the telegraphic information about the
missing children, they falsely implicated the appellant with
the help of PW3.
Again, according to PW-3, when she met PW-2 and her
mother-in-law on coming out of the house of the appellant
after he had made an extra-judicial confession to her,
Tejinder Kaur PW-2 started crying on seeing her while her
mother-in-law Ajmer Kaur kept silent. This is an apparent
improvement made by her at the trial since in her statement
in the FIR Ex. PB, with which she was duly confronted, she
had stated that both Tejinder Kaur and Ajmer Kaur were
weeping and crying. When asked to explain this improvement
at the trial, PW-3 stated that she had "nothing to say". In
view of the hostility which the appellant had with PW3, for
leading his wife estray, we find it rather difficult to
accept that the appellant could have made any extra-judicial
confession to her. The manner in which the extra-judicial
confession is alleged to have been made and the silence of
PW-3 for three days in disclosing the same to the police,
even though she had admittedly been with the police between
21st and 23rd March, 1984 renders it unsafe to rely upon her
statement. This un-explained long delay in lodging the first
information report Ex. PB detracts materially from the
reliability of the prosecution case in general and the
testimony of PW3 in particular. We find that the alleged
extra-judicial confession is surrounded by suspicious
circumstance and the prosecution has not been able to
establish that the appellant had made any extra-judicial
confession to PW-3 Satya Walia and therefore this
circumstance remains unestablished.
(iii) Recovery of a dead body and its claim by the appellant
as that of Rozy
Though with the ruling out of the circumstance relating
to the "last seen together " and " the making of extra-
judicial confession", as not having been established, the
chain of circumstantial evidence snaps so badly that it is
not necessary to consider any other circumstance, but we
find that even the third circumstance relating to the
recovery of the dead body, and it being claimed by the
appellant and its subsequent cremation by him has remained
unestablished.
The two witnesses relied upon by the prosecution in
support of the 3rd circumstance are PW-6, Dr.Jaswant Singh
and PW-7, Naib Singh. According to PW-6, on 19th March, 1984
when he had gone near the canal to case himself, he noticed
dead body of a female child in the canal. Tej Singh Panch,
Santokh Singh and Naib singh also arrived at the spot, and
the dead body was taken out of the canal. None out of those
who had, by that time assembled at the spot, could identify
the child whose dead body was recovered. The chowkidar of
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the village was sent to the adjoining villages for
ascertaining the identify of the child. However, no one was
able to identify the child. The appellant went to the spot
at about 5.00 p.m. and stated that "his children had fallen
in the canal and he was in search of them." He identified
the dead body as that of his daughter Rozy. He was given
custody of the dead body. He wanted to take the child to
Patiala but stated that he was a poor person and had no
money. Persons who were present there contributed some money
and gave it to him to take the dead body to Patiala. That
later on he came to know from some "other persons" that the
appellant had cremated the dead body near the drain. Naib
Singh PW-7, who has a shop situated on the canal bank of
Rara Saheb spoke on the same lines as PW-6. He deposed that
at about 12.00 noon or 12.30 p.m. he came to know about the
presence of the dead body of a child The dead body was
recovered from the canal. No one was able to identify the
dead body till the appellant arrived there at about 5.00
p.m. and identified the body to be that of his child. The
child was handed over to the appellant, who was also given
some money on his stating that he was a poor person and did
not have any money to take the dead body to Patiala.
Admittedly, neither PW-6 nor PW-7 knew the appellant
from before. No identification parade was held to identify
the appellant as the person who had approached PW-6 and PW-7
and had claimed the dead body to be that of his daughter. It
was incumbent upon the prosecution to have held an
identification parade for proper identification of the
appellant by these two witnesses. Not only did it fail to
hold an identification parade but the prosecution also
failed to give any explanation for not holding such a
parade. The identification of the appellant by PW-6 and PW-
7, as the person who had claimed the dead body, in court,
about 9 months later, in the absence of any earlier
identification, loses much of its importance and is in any
event not sufficient to hold that the appellant had claimed
the dead body to be that of his child. Thus, considered in
the light of the above discussion, we find that the
prosecution has not been able to establish the circumstance
relating to the recovery of the dead body or it being
claimed by the appellant to be that of his child. It cannot
be said with any amount of certainty that the dead body
found by PW-6 and PW-7 was that of Rozy or that the
appellant had claimed the dead body to be that of his child.
The evidence is of a doubtful nature and has to be ruled out
of consideration to connect the appellant with the crime.
(iv) Disclosure statement :
The last circumstance relied upon by the prosecution is
the disclosure statement of the appellant, leading to the
recovery of the bones of the deceased. The Trial Court ruled
out of consideration the disclosure statement and the
consequent recovery of the bones and placed no reliance on
it. The Trial Court opined "At the outset it may be stated
that in this case no importance can be attached to the
disclosure statement made by Balwinder Singh accused and in
consequence thereof recovery of the bones. Tejinder Kaur PW
had already visited the place of cremation much before the
case was registered. Be that as it may, there is no reason
to doubt that bones were taken into possession from the
alleged place of cremation which is admittedly an open
place." We agree with the trial court.
That apart, the prosecution evidence is not specific as
to whether even the bones which were recovered from the
place of cremation behind Gurdwara Rara Saheb were those of
Rozy. According to PW-6 and PW-7, the age of the dead body
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of the child which was recovered from the canal was about 4
or 4-1/2 years. According to the evidence of Dr. Surinder
Behal, PW-1, the bones which were sent to him for
examination were of a child aged between 3 to 5 years and
the identity of the sex of the child could not be
established from those bones. From the prosecution evidence
including the statement of PW-2, the age of Rozy was about 2
or 2-1/2 years. It cannot therefore, be said that the
recovered bones have been connected positively to be those
of Rozy. Moreover, according to PW-6 and PW-7, the child
whose body was recovered from the canal had red/pink rubber
bangles on its wrist but according to PW-2 when Rozy left
home in the company of the appellant, she was wearing steel
bengles. The bangles which were recovered from the place of
cermation alongwith the bones were also found to be steel
bangles. Thus, it cannot be said with any amount of
certainty that the bones which were taken into possession
pursuant to the disclosure statement allegedly made by the
appellant were that of Rozy at all. In this connection it
also deserves to be noticed that Sham Singh and Satpal
before whom the disclosure statement, Ex. PE, was alleged to
have been made by the appellant, as per the evidence of ASI
Iqbal Singh PW were not examined at the trial. Even the
witnesses to the recovery of the bones were withheld and not
produced at the trial. These infirmities, create a doubt
about the correctness of the prosecution case regarding the
making of any disclosure statement by the appellant. This
circumstance also, therefore, has not been established by
the prosecution.
From the above discussion it emerges that none of the
four circumstances relied upon by the prosecution to connect
the appellant with the crime have been established by the
prosecution. On an independent appraisal of the evidence on
the record, we have unhesitatingly come to the conclusion
that the Trial Court was not justified in convicting and
sentencing the appellant for the offence under Section
302/201 IPC. The finding of guilt recorded against the
appellant by the Trial Court is not sustainable in law. From
the very opening sentence of the judgment of the Trial Court
which reads "Birth of a female child is still considered a
curse in the Indian society. The present case is the worst
type of example where father is alleged to have caused the
murder of his two daughters who were aged between 5 to 7
years." it appears to us that the Trial Court got swayed by
emotional considerations and allowed suspicion, surmises and
conjectures to take the place of legal proof.
This appeal is consequently allowed and the conviction
and sentence of the appellant is hereby set aside. The
appellant is on bail by virtue of an order of this Court
dated 25.4.1989. His bail bonds shall stand discharged.